Construction, Forestry, Mining and Energy Union

[2013] FWCA 3387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Construction, Forestry, Mining and Energy Union
(AG2013/6616)

DB SCAFFOLDING & RIGGING NQ PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 30 MAY 2013

Application for approval of the DB Scaffolding & Rigging NQ Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 24 May 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a Greenfields agreement known as the DB Scaffolding & Rigging NQ Pty Ltd and CFMEU Union Collective Agreement 2011-2015(“the Agreement”).

[2] A statutory declaration was provided by Mr D. Hanna, Divisional Branch Secretary, of the CFMEU.

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] Regarding clause 2 of the Agreement, I noted in a previous decision - [2013] FWC 1462 - regarding the CFMEU template agreement that I do not consider the clause, as it purports to regulate the making of a future agreement, to be permitted content (because it does not meet the preconditions specified at s.172 of the Act). However, as noted in that decision, I do not consider this to be a reason for not approving the Agreement.

[5] For the avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 39 of the Agreement. The relevant extract of Clause 39 is as follows:

“The right provided for in subclause 33.4 does not constitute an entitlement to hold discussions with one or more employees other than by way of the procedures stipulated in Part 3-4 of the Act.

The company will comply with the requirements of the Privacy Act 1988 (Cth) in respect of any requests made under the subclause 33.7 to which that Act applies. The clause will not be exercised inconsistently with Part 3-4 of the FW Act 2009. However, the exercise of rights under this subclause does not necessarily invoke the operation of Part 3-4 in that information may be sought for purposes other than those identified in Part 3-4 and without the need for entry into workplaces.”

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the DB Scaffolding & Rigging NQ Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The Fair Work Commission was the body that heard the application. The primary legal issue before the court was whether the collective agreement met the requirements set out in the Fair Work Act 2009. Specifically, the court had to determine if the agreement was a genuine bargain, if it was made in good faith, and if it adhered to the provisions of the Act.

The court examined the process through which the agreement was made and assessed whether it was a genuine bargain. It considered the extent to which both parties had engaged in genuine negotiations and whether the terms of the agreement reflected a balance of interests. The court also evaluated whether the agreement was made in good faith, focusing on whether the parties acted honestly and without deceit or bad faith. Additionally, the court reviewed the agreement to ensure that it complied with the requirements of the Fair Work Act, including provisions related to minimum entitlements, terms of employment, and dispute resolution mechanisms.

After careful consideration, the court found that the agreement was a genuine bargain and had been made in good faith. The terms of the agreement were deemed to reflect a fair and balanced negotiation process. Furthermore, the court determined that the agreement adhered to the provisions of the Fair Work Act, including minimum entitlements and dispute resolution mechanisms. Therefore, the court approved the collective agreement.

The Fair Work Commission approved the DB Scaffolding & Rigging NQ Pty Ltd and CFMEU Union Collective Agreement 2011-2015, confirming that it met the statutory requirements under the Fair Work Act. This decision ensured that the terms of the agreement would govern the employment conditions of the parties for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established